How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his [...]]]>

Justice Scalia, author of Whren v. United States and Ashcroft v. al-Kidd (used with permission, www.courtartist.com)

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

By pretext, I mean the use of legal authority for a purpose clearly and substantially different than the original reason for which the power was granted.  Pretextual use of laws will often be covert or unacknowledged.  That is, officials may feign to exercise their authority under the law’s original purpose or seek refuge in a double purpose.  But I do not mean to include the lawful use of subterfuge or deceit (such as when police conduct a sting or lie to a suspect during consensual questioning).  Those tactics may raise serious issues, but not pretext as I define it.  Nor do I mean to include prosecution for a lesser offense, such as convicting Al Capone for tax evasion.  Officials certainly wished they had the evidence to convict Capone of much more, but their tax prosecution was squarely within the intended use of that provision of the criminal code.  Michael Whren was never tried for violating the traffic code; it was a means to a different end that was used to avoid the Fourth Amendment’s restriction of the police.  Capone was indicted, tried, and convicted, for doing precisely what the law forbid.  Eliot Ness and his Untouchables didn’t use this law to evade some other restriction on their conduct.  The prosecution was the point.

Abel v. United States (1960)

KGB Colonel Rudolf Ivanovich Abel

Consider the case of Rudolf Abel, the master KGB spy whose seizure, conviction, and exchange for U-2 pilot Francis Gary Powers I examine in a recent article.  Abel’s arrest was a classic instance of pretext.  The Fourth Amendment required FBI agents to obtain a warrant before they could seize Abel and search his room.  My research into the case convinced me that a warrant could have been obtained had one been sought.  But the men who pushed into Abel’s room early one morning, warrantless, knew that an arrest warrant carried undesirable consequences.  Such an arrest would lead to an arraignment in open court, the appointment of counsel, and all the attendant publicity such a hearing would entail.  That would ruin any hope of turning Abel into a double agent in an existential fight against the Soviet Union.

When Colonel Abel was rousted from his bed, he was therefore awakened on a pretext.  The FBI asked the INS to seize Abel under the pretext of enforcing the country’s immigration regulations while the FBI directed the operation from the doorway.  At the time, the INS could seize Abel without a warrant, acting only on the basis of an internal departmental order. 

The tale then takes a turn that might seem to have come from today’s headlines.  Abel was secretly flown from New York to McAllen, Texas, where he was interrogated without a lawyer and kept virtually incommunicado for almost seven weeks.  Following this unsuccessful effort to break him, the Justice Department then used the evidence obtained during their raid to convict him of espionage.  The use of this immigration authority for the unintended purpose of counterespionage neatly skirted the constitutional protection against unreasonable searches and seizures, not to mention official disappearances.  On a purely formalistic level, the officials complied with the requirements of this immigration law.  On another level, the pretextual use of this statute produced results hard to justify as lawful.  When his lawyer argued pretext in an effort to exclude the (damning) evidence, the Supreme Court sustained his conviction.  The vote was close, 5-4, and Justice Douglas mockingly noted the real reason why a warrant was never sought for this arrest: “If the FBI agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized.’  How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment!  What a hindrance it is to work laboriously through constitutional procedures!  How much easier to go to another official in the same department!  The administrative officer can give a warrant good for unlimited search.  No more showing of probable cause to a magistrate!  No more limitations on what may be searched and when!”

Ashcroft v. Abdullah al-Kidd (2011)

Former Attorney General John Ashcroft

Fast foward fifty years.  Abdullah al-Kidd (a U.S. citizen and former University of Idaho football star) was cooperating with the FBI in a counterterrorism investigation.  The FBI alleged (how truthfully is sharply disputed) that al-Kidd was about to flee the country.  A criminal warrant for his arrest could not be sought because there was no probable cause to believe that al-Kidd had broken any law.  So the FBI obtained a material witness warrant, which may be had from a judge on grounds substantially easier to meet.  The material witness statute, 18 U.S.C. § 3144, was originally intended to secure “the testimony of a person [that] is material in a criminal proceeding” when it is impracticable to do so by other means, such as a subpoena or deposition.

Al-Kidd alleged that he was then held for sixteen days in high-security prisons in three states, housed with convicted criminals, subjected to frequent strip-searches, routinely shackled, and forced to sleep without clothes when he was not kept awake by bright lights in his cell.  He was interrogated without counsel.  He was then subject to severe restraints on his travel for fifteen more months. 

Al-Kidd claimed that the material witness statute was used pretextually, to interrogate him as a suspect in his own right, not as a witness to someone else’s wrongdoing.  His lawyers observed that his arrest was mentioned in congressional testimony by FBI Director Robert Mueller as an example of success in the Government’s counterrorism operations ( a strange statement if made about a witness, but not if made about a suspect).  In any event, al-Kidd was never called to testify at the trial, which ended in an acquittal on some counts and a hung jury on others.  So the Government never used the testimony that it claimed was material enough to justify his lengthy detention. 

Al-Kidd filed a Bivens action, alleging that his arrest was part of a nationwide policy to use the material witness statute pretextually.  When Acting Solicitor General Neal Katyal began his argument for the United States last March, he started as you would expect a defense of pretextualism under the favorable Whren precedent to start: “This lawsuit seeks personal money damages against a former Attorney General of the United States for doing his job, allegedly with an improper motive …”  It was the right rhetorical focus.  Justice Scalia, delivering the opinion of the Court, noted that the Whren opinion “swept broadly to reject inquiries into motive generally” and “only an undiscerning reader” would disagree.  On the strength of the Whren analysis, the Court held that the material witness warrant “cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.” 

But it turns out that the case wasn’t quite as easy for the Supreme Court to decide as Whren had been fifteen years earlier.  The opinion was announced on the last day in May, with concurring opinions by Justices Kennedy, Ginsburg, and Sotomayor (Justice Kagan took no part in the case).  Although no one dissented, the latter two opinions concurred only in the judgment reversing and remanding the lower court decision that had allowed the action to proceed.  Justice Kennedy (who, like Justice Ginsburg, had joined the Whren opinion) had more trouble.  He insisted that the opinion he joined left “unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.”  Justice Ginsburg seemed to wonder, given al-Kidd’s allegations, whether the material witness warrant had been validly obtained in the first place.  In addition, Justice Ginsburg wondered at the alleged conditions of his confinement, especially since he was “[o]stensibly held only to secure his testimony[.]“  And Justice Sotomayor, also questioning the validity of the warrant, refused to join the majority’s opinion because “it unnecessarily resolves a difficult and novel question” of constitutional law.  For the newest justice participating in the case (and the one with far and away the most prosecutorial experience), ”[w]hether the Fourth Amendment permits the pretextual use of a material witness warrant for preventive detention of an individual whom the Government has no intention of using at trial is, in my view, a closer qusetion than the majority’s opinion suggests.”

–  ”Americans must rule America, and to this end native-born citizens should be selected for all State, Federal, and municipal offices of government employment, in preference to all others.”

–  ”A change in the laws of naturalization, making a continued residence of twenty-one years, of [...]]]> I have now reached the year 1856 in the Bingham biography, which means I am working through some interesting materials on the Know-Nothing (or American) Party, which was a strong nativist and anti-Catholic movement that competed with the Republicans in 1854 and 1856. (Bingham pandered to anti immigrant sentiment off and on throughout his congressional career.)  Some of the planks in the Know-Nothing platform are startling and had credibility because Millard Fillmore, the former President, was the Party’s presidential nominee.  For example:

–  ”Americans must rule America, and to this end native-born citizens should be selected for all State, Federal, and municipal offices of government employment, in preference to all others.”

–  ”A change in the laws of naturalization, making a continued residence of twenty-one years, of all not heretofore provided for, an indispensable requisite for citizenship hereafter, and excluding all paupers, and persons convicted of crime, from landing upon our shores.”

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming [...]]]> The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime.

Another impact is to permanently estrange many of the temporarily needy from government. In Griftopia, Matt Taibbi interviews members of the US Tea Party. He reports that their views of government arise out of their interactions with officials at the IRS, DMV, TSA, zoning boards, or similar agencies: stressful, one-shot interactions with bored, inattentive, hostile, and/or underpaid bureaucrats. Is it any wonder why many so many of those in economic distress may want to turn their back on government altogether?

Dismissive attitudes from frontline bureaucrats end up corroding state action generally.  The worse they do, the less voters want to fund their agencies; and the more strapped agencies are, the less likely they are to retain qualified and motivated workers.  Corey Robin puts it well as he assesses the immense popularity of anti-tax movements:

Liberals often have a difficult time making sense of these movements – don’t taxes support good things? – because they don’t see how little the American state directly provides to its citizens, relative to their economic circumstances. Since the early 1970s, with a few brief exceptions, workers’ wages have stagnated. What has the state offered in response? Public transport is virtually non-existent. Even with Obama’s reforms, the state does not provide healthcare or insurance to most people. Outside wealthy communities, state schools often fail to deliver a real education. In such circumstances, is it any wonder ordinary citizens want their taxes cut? That at least is change they can believe in.

Matthew Yglesias questions whether there is still much anti-tax fervor left.  But whatever the current polling numbers are, both Ehrenreich and Robin show how the weakness of our social welfare state is self-reinforcing.  Ehrenreich also shows how social silences about poverty are imposed, down the very youngest children:

At school, [Kristen's] seven-year-old’s class was asked to write out what wish they would present to a genie, should a genie appear. Brianna’s wish was for her mother to find a job because there was nothing to eat in the house, an aspiration that her teacher deemed too disturbing to be posted on the wall with the other children’s requests.

That teacher’s reticence is re-enacted daily on a happy talk MSM that leaves it to the World Socialist Web Site to report on the US’s soaring child poverty rate. If the middle class is invisible to them, how can they glimpse those barely keeping their heads above water?

2) Martha McCluskey, From the Welfare State to the Militarized Market: Losing Choices, Controlling Losers: McCluskey is one of the ClassCrits organizers, and her book chapter puts Ehrenreich’s observations in a broader historical perspective:

The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres. . . . [For example, in the] welfare reform policies of the 1990s . . . restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. . . . [F]ree market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.

As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.

McCluskey’s deconstruction of free market rhetoric reminded me of the paradoxes explored in a recent article titled Monopoly and Competition in 21st Century Capitalism.   The authors note that, today, “most of the examples of competition and competitive strategy that dominate economic news are in fact rivalrous struggles between quasi-monopolies (or oligopolies) for greater monopoly power.”  The authors back their ideas with empirical data about the degree of concentration in many US industries.  More importantly (given the endless contestability of such data), they give a fascinating account of competition as an essentially contested concept in the history of political economy.

3) Glenn Greenwald on the surveillance state: Greenwald believes that a sprawling surveillance apparatus is becoming increasingly focused on political “radicalism,” rather than the terror threats that were its founding rationale.  This is a real problem, made all the more menacing by economic instability.  The state could address it by embracing the bold experimentalism of the New Deal. That nurturing and supportive role is being increasingly eclipsed by a domestic state remade in the image of its foreign roles.  Alfred W. McCoy has argued that “the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling ‘the homeland.”  The “Secure Communities” program may be validating McCoy’s (and Greenwald’s) fears.

I think all of this work is an important “reality check” as we consider the patterns of privilege and burden created by the modern economy.  Don Peck recently observed the self-serving two-step that many at the top have used to justify their accelerating affluence:

As America’s winners have been separated more starkly from its losers, the idea of compensating the latter out of the pockets of the former has met stiff resistance: that would run afoul of another economic theory, dulling the winners’ incentives and squashing their entrepreneurial spirit; some, we are reminded, might even leave the country. And so, in a neat and perhaps unconscious two-step, many elites have pushed policies that benefit them, by touting theoretical gains to society—then ruled out measures that would distribute those gains widely.

Peck is mostly comfortable with the idea that those at the top are a legitimate meritocracy, though he does note that “some of the policies that have most benefited the rich have little to do with greater competition or economic efficiency.”  John Kay of the Financial Times ups the ante, suggesting that we must always be careful to assess whether fortunes spring from productivity (a sign of a well-ordered society) or brute power (an indicator of injustice):

Two broad economic theories describe the allocation of income and wealth. The power theory states, broadly, that people get what they grab: from the forest, the markets, or the shop window. The distribution of income reflects the distribution of power. . . .The alternative theory is that what people earn reflects their marginal productivity – how much they personally add to the value of goods and services. The marginal productivity theory has many attractions, especially to those who are well paid: if what they receive is a product of their own efforts, their rewards are surely well deserved.

Kay worries that, among elites, the “ethic of just reward through effort gave way to the culture of present entitlement from possession.”  If, as McCluskey, Ehrenreich, and Greenwald all suggest, today’s low wage labor force is being pressed toward privation by the state’s “guard labor,” then the edifice of industry built on a cheap workforce owes as much to state discipline as it does to managerial genius.

When the dragnet replaces the safety net, workers have fewer options and are more desperate for any position they can get.  Instead of developing better technology, methods, and innovations, business leaders can count on profits from squeezing workers.  Prosperity based on that kind of sweating can’t last forever, as dollar stores are now learning.  But when CEOs’ average pay is $9.8 million per year, they need only keep the game going a few years to earn the fortune of a lifetime.

Image Credit: Flawka.

Volume 58, Issue 5 (June 2011)

Articles

Comments

The Yale Law Journal Online has just published the final piece of a symposium devoted to William N. Eskridge, Jr. and John Ferejohn’s remarkable new book, A Republic of Statutes: The New American Constitution. The book chronicles the development of constitutional principles derived not directly from the text of the Constitution itself but from the implementation of entrenched “superstatutes” by administrative and executive officials. The symposium essays examine both the broad contours of the theory advanced by Eskridge and Ferejohn as well as its application to particular fields of law, such as immigration, national security, and health care. Visit YLJ Online to read the full collection:

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also [...]]]> In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

Parents are aware of society’s disapproval of nonmarital families. For example, some married women take their husband’s surname to protect their children from assumptions that they are “illegitimate.”  Couples who have cohabited for years often get married once they decide to have children, in part, because they do not want their children to be stigmatized as illegitimate. Courts are aware of societal biases against nonmarital children and have upheld doctrines, such as the presumption of legitimacy—the presumption that a child born to a married woman is her husband’s child—partly to protect children from the “stigma of illegitimacy.” Courts have also rejected petitions to open adoption records, partly because doing so would expose children to the “stigma of illegitimacy.”   They have also rejected mothers’ petitions to change their child’s surname from that of the absent fathers’ to the mothers’ surname out of concern that people will assume that the child is illegitimate. The Massachusetts Supreme Court recently recognized the “enhanced approval that still attends the status of being a marital child” as a reason, among others, to extend the right to marry to same-sex couples.

The law should eliminate the remaining legal distinctions between marital and nonmarital children.  However, societal disapproval of nonmarital families will likely remain so long as lawmakers continue to signal that nonmarital families are undesirable.  Lawmakers have devoted significant resources to promote marriage and reduce the rate of nonmarital births or what they refer to as the “illegitimacy ratio.”  For example, the Bush administration earmarked $750 million over five years to fund programs that promote marriage and the Obama administration recently funded a national media campaign to publicize the benefits of marriage.  The 1996 welfare reform law (the Personal Responsibility and Work Opportunity Reconciliation Act) expressly provides that it aims to promote marriage and reduce nonmarital births and authorized a $100 million annual bonus to be awarded to five states that reduced the number of nonmarital births the most in a given year.  West Virginia provided “marriage bonuses” to public assistance recipients who married and other states experimented with a variety of marriage incentives and initiatives.

In addition to these marriage promotion and nonmarital birth reduction efforts, a number of courts have denied same-sex couples the right to marry on the ground that recognizing marriages between couples who cannot procreate naturally might signal that marriage is not “necessary for optimal procreation and child rearing to occur.” These efforts and statements by lawmakers signal that nonmarital families are inherently inferior and may serve to strengthen societal disapproval of these families.

While lawmakers might be persuaded to eliminate the remaining distinctions between marital and nonmarital children—after all, everyone agrees that children should not punished for the actions of their parents—they are unlikely to alter their messages signaling disapproval of nonmarital families.  One reason is that lawmakers believe that promoting marriage and decreasing nonmarital births will benefit children and society as a whole.  Recent studies, however, show that marriage’s positive effect on children may be almost entirely the result of factors other than marriage itself such as growing up in a family with fewer resources, individuals’ positive attitudes towards marital families, and the fact that couples who choose to marry may be more committed and future-oriented.

Even if we assume that marriage itself benefits children, denigrating nonmarital families is unlikely to lead to a greater number of healthy marriages.  When asked why they haven’t married, many unmarried mothers reply that they are waiting until they are financially stable and in a stable relationship.  They recognize that a marriage plagued by high conflict and chronic lack of resources does not benefit them or their children and is likely to end in divorce.  So rather than encourage expecting couples or parents to marry, regardless of their readiness to marry or the quality of their relationship, shouldn’t the law provide resources and support to all children without expressing disapproval of single parent and cohabitating families?

Volume 57, Issue 5 (June 2010)

Articles

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests [...]]]> In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of ”renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the [...]]]> It is a great pleasure to be a guest blogger.  My current interests center around federalism.  My posts likely will as well.  Here goes.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism).  Climate change was not really a federal issue or really a state issue.  Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns.  Federalism functioned through the dynamic overlap and interaction of state and federal authority.  Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.

But where does this leave Arizona?  Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation.  Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism?  The answer is yes.

Under no view of federalism can states trump valid federal law.  The Arizona statute may well be preempted by federal law, and the state challenges to health care legislation will surely founder on the shoals of modern constitutional principles of broad national power.   The Supremacy Clause of the United States Constitution, the key linchpin of our federalist system, dictates that federal law will prevail over contrary state enactments–and that all judges shall so declare.

What then does federalism contribute in these situations?  Federalism provides a state governmental platform for voicing dissent from national policies.  Federalism means that states can pass legislation in tension with federal policy and can file suits against the federal government.  Federalism empowers the states to give public and powerful expression to opposing views.

Federalism is not vindicated only when states promote “better” policies than the federal government.  Federalism allows states to offer alternative perspectives, expressing the deeply felt sentiments of their citizens.  None of this is intended to minimize the real harm of invidious legislation.  The outcome of the state governmental process may be ugly.  The voices from the desert may seem shrill and hostile.  That is a cost of federalism, but over the long run, polyphony or dialogue seems superior to monologue, even if we do not like all of the sounds.  Federalism forces us to face the music.

The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793.  By the 1830s, though, a number of free states passed laws that made it a crime to catch or [...]]]> One way of thinking about the new Arizona statute on illegal immigration is through a comparison with the debate over state regulation of fugitive slaves during the antebellum period.  Now before the angry comments start pouring in, I’m not saying that people who favor more border security are like slaveowners or that those who are here illegally are like slaves.  What I mean is that in both cases there was a controversial issue that turned on whether there should be exclusive federal authority or a diverse set of state policies.

The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793.  By the 1830s, though, a number of free states passed laws that made it a crime to catch or aid in the capture of fugitive slaves.  Other free states insisted on certain procedural protections for those alleged to be fugitives, otherwise free African-Americans would be subject to what amounted to legalized kidnapping.

In Prigg v. Pennsylvania, the Supreme Court held that these state statutes were invalid because the Fugitive Slave Clause (even though it was not in Article One, Section gave the federal government exclusive power over the subject.  In other words, states could not legislate at all on this topic — either to help or hinder slave captures.  Chief Justice Taney concurred but argued that state laws that furthered the federal policy by giving aid to slave catchers were not unconstitutional.  One could view the Court’s position as a compromise that attempted to take the entire topic off of the topic even though it was probably inconsistent with preemption principles.  Moreover, in practice slave catchers in the North could not operate well without the protection of state law or the aid of state officials.  (Indeed, Prigg contained language similar to the modern Supreme Court’s anticommandeering doctrine.)

Now we have a similar issue.  States like Arizona want to crack down on illegal immigration.  Others want to be sanctuaries for them and refuse to cooperate with deportations.  One solution to this would be to say that all state regulation of the subject is barred.  That is not neutral with respect to outcomes, but it would channel all reform efforts to Washington.  Or courts could say that only state laws that assist immigration policy as set by Congress is permissible.  Of course, that would require someone to determine what that policy is.  The major problem in immigration policy, it seems to me, is that the country is uncertain what it wants.  Is illegal immigration a harm or a benefit?  Should we be deporting people or giving them amnesty? Thus, courts that go with something other than “states can’t regulate this at all” might have a hard time reasoning their way to a conclusion.

ARTICLES Property as Process: How Innovation Markets Select Innovation Regimes Jonathan M. Barnett 384 The President and Immigration Law Adam B. Cox & Cristina M. Rodríguez 458 Government in Opposition David Fontana 548 COMMENTS INA Section 242(g): Immigration Agents, Immunity, and Damages Suits 625 Taxing Unreasonable Compensation: § 162(a)(1) and Managerial Power 637

So what then should we make of German Immigration Commissioner Maria Boehmer’s proposal to address Germany’s integration problem through contracts?   Expected to be introduced during the current legislative [...]]]> Though European states have received increasing numbers of immigrants over the past few decades, they have failed to integrate these immigrants as successfully as traditional immigrant-receiving nations such as the United States and Canada.  There are undoubtedly many factors that contribute to this differential in integration success rates, but access to education and employment may be the most important.  Examining these measures, a recent OECD report found that the children of migrants living in Europe have significantly worse education and labor market outcomes than the children of migrants in the United States, Canada, Australia, and New Zealand.

So what then should we make of German Immigration Commissioner Maria Boehmer’s proposal to address Germany’s integration problem through contracts?   Expected to be introduced during the current legislative period, these contracts will explain the services and assistance available to immigrants while requiring immigrants to learn German and avow their support for liberal values such as freedom of expression and equality of women.  Dr.  Boehmer acknowledges that the key to integrating immigrants is access to schooling and employment markets (the latter through recognition of qualifications from abroad).

Even assuming that the provisions relating to services and assistance encourage immigrant enrollment in schools and participation in labor markets, the contracts alone seem entirely inadequate to overcome the complex and stubborn extant barriers to access.  And it seems just wishful thinking that a contract could be sufficient to enable a cultural shift in the immigrant population towards “German values”.  Moreover, the few news articles I could find on this story made no mention of how these contracts would be enforced and what would be at stake.  Perhaps the only value of these contracts is symbolic, but then the concern is that they might prove more alienating than welcoming.  All in all, integration through contract seems an unlikely outcome.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects [...]]]> Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.

Identity Theft

The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.

Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.

Stays of Removal Pending Appeals

Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.

Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”

The Persecutor Bar to Asylum

The U.S. immigration laws include provisions that permit a noncitizen relief from removal if he or she has been persecuted, or faces a well-founded fear of future persecution, on account of political opinion, religion, race, nationality, and membership in a particular social group. There are a number of exclusions from such relief, including one for a noncitizen who persecuted others on account of one of the five enumerated grounds. The Supreme Court in Negusie v. Mukasey held that

“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.”

The issue presented by the case was whether the provision of the Immigration and Nationality Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” His refusal resulted in roughly two years in prison. Following his imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work at the prison, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to the applicability of the provision of the bar of asylum to persons who had persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group.

The Court reversed the Fifth Circuit’s decision for the U.S. government and remanded. Justice Kennedy wrote the opinion for an 8-1 Court. The Court held that the BIA had wrongly believed itself bound by the Court’s 1981 decision in Federenko, which dealt with another statute (Displaced Persons Act of 1948), and remanded to the agency for consideration of the issue under the asylum provisions of the Immigration & Nationality Act; according to the Court, ordinary deference to the agency’s interpretation of the statute under Chevron was not warranted given the BIA’s incorrect conclusion that it was bound by Federenko. Justice Thomas filed a dissent, claiming that the persecutor bar should apply to a person who persecuted others, coerced or not.

The Government’s Sole Victory: Aggravated Felony Definition

The U.S. government’s sole victory in the Supreme Court’s last Term was in a unanimous opinion by Justice Breyer, which affirmed the Third Circuit’s decision in Nijhawan v. Holder. The Petitioner, an immigrant from India, was convicted of conspiring to commit mail fraud and related crimes. Because the relevant statutes did not require a finding of the amount of a loss, the jury made no such finding. However, at sentencing, petitioner stipulated that the loss exceeded $100 million. He was sentenced to prison and required to make $683 million in restitution. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The immigration court found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. The Supreme Court affirmed.

What Do Victories for Noncitizens in the Supreme Court Mean?

In the four immigration cases this Term, the Supreme Court applied generally applicable principles of statutory interpretation, traditional equitable doctrines, and deference to administrative agencies. Losses for the U.S. government in the three cases suggests that the Bush administration took some extreme positions on immigration-related matters that even a conservative Supreme Court could not swallow.

Interestingly, the decisions involve bodies of jurisprudence (statutory interpretation, equitable principles, agency deference) that cut across many different bodies of law. The Bush administration made arguments that ran counter to the Court’s general tendency in those areas and lost in three out of four cases. Perhaps the Obama administration understands this, as the Solicitor General has abandoned the Bush administration’s position greatly limiting judicial review of discretionary immigration decisions in a motion to reopen case in which the Supreme Court granted cert.

In sum, wins for noncitizens in this case as well as Flores-Figueroa v. United States, Negusie v. Mukasey, and Nken v. Holder might be surprising to some with this staunchly conservative Supreme Court. But it once again demonstrates that immigration is not a simple liberal/conservative issue. And that the law indeed does matter.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse [...]]]> Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).

What justifies the disparate treatment given to these acts of illegal entry? One thought is that the wrong of illegal immigration is greater because national territorial integrity is a more substantial interest that an individual’s real property. But that can’t be true, since adverse possession divests the property owner entirely, whereas a single illegal immigrant does negligible harm to the United States.

Perhaps the issue is the frequency of the behavior. In other words, adverse possession rests on an unstated assumption (that might soon be tested with lots of homes sitting empty in foreclosure) that the doctrine is rarely invoked. If illegal immigration were uncommon, folks might be more inclined to extend amnesty under appropriate circumstances. Likewise, if squatting was rampant, maybe adverse possession would be eliminated (“Down With Property Amnesty”).

Or maybe the answer is that adverse possession is a common-law doctrine while immigration is governed by a dense thicket of statutes. Put another way, if judges were left on their own maybe they would have crafted something like adverse possession for illegal immigration, but they cannot because Congress takes an active role on this subject.

What do you think?

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the [...]]]> This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.

For the moral philosophers among us, the duress exception to the persecutor bar presents questions ripe for study. Immigrants within the borders of the United States who fear persecution in their homeland on account of one of five protected grounds are eligible for asylum, which is granted as a matter of discretion. The statute bars from asylum protection those who have “ordered, incited, or participated in the” persecution of others on account of one of the five grounds — thus a Hutu who had persecuted Tutsis during the genocide in Rwanda and then suffered persecution under the Kagame regime would not be eligible for asylum in the United States, and Mr. Negusie, who was tortured and then forced to work as a prison guard by the Eritrean government, may be excluded from asylum for acts he performed under coercion.

Is the reason for the persecutor bar, as Negusie argues, “because ‘persecution” presumes moral blameworthiness”? More importantly, does it then follow that those who persecute under duress are not culpable? Can coercion ever be an excuse for intentional killing? Or, as Scalia argues, is the persecutor bar simply a measure of desirability? Can we assume that those who persecuted others would be “relatively undesirable” as immigrants? Should this matter in the context of asylum, when the individual’s life may hang in the balance? Is it morally appropriate to lay down a bright line rule that excludes all those involved in persecution from asylum status, rather than examining individual situations on a case-by-case basis?

Difficult questions, all, and I’m afraid I don’t share the Supreme Court’s confidence in the Board of Immigration Appeals’ ability to answer them impartially, thoughtfully and fairly. Mr. Negusie will just have to wait and see.